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Matthew R. Rheingans
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Matthew Rheingans’s Answers

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  • My father passed Aug 3, 2012 with no will or power of attorney. What rights do my sister and I have in decision making?

    My father just passed Aug 3, 2012. He was remarried/divorced and has another adult daughter. My ex-step mom has excluded my sister and I from being a part of the funeral arrangements. I realize she is protecting her daughter but in doing this s...

    Matthew’s Answer

    Since your dad died without a will or other distributive estate planning document like a revocable living trust, he is said to have died "intestate". This is opposed to dying with a will in place, which would be called dying testate.

    Florida statutes Chapter 732 govern intestate disposition of assets and other related matters. There is a statutory scheme in place according to which your father's assets will be distributed. The general idea is that his assets will go down to his legal heirs (lineal blood descendants including any adopted children) and also to a surviving spouse. Since it appears your father was divorced at the time of his death, his probate assets should pass to his children. Your ex-step mom has no legal rights in the house or the funeral arrangements.

    Florida statutes also provide that the next of kin has the right to dispose of the body if no will is in place which states what is to be done with the remains. You would be that next of kin.

    It depends how your father had his house titled as to its disposition. Hopefully, he owned it as a single man and it was not part of any divorce decree between him and your ex stepmother. If so, then if it is his homestead, then it passes by operation of law to you at the time of death. You will need to record a short form death certificate with the county clerk to effect that transaction for the rest of the world to see.

    I would suggest contacting a probate lawyer in your area and petitioning the court to open up an estate on behalf of your father, which you can do as an "interested party", i.e., intestate heir. You should record the death certificate and if your ex step-mother still refuses to relinquish possession of the home, then you may need to file an action for unlawful detainer pursuant to Florida Statutes chapter 82.

    Best of luck to you!

    Matthew Rheingans, P.A.
    1314 E. Venice Avenue, Ste. E
    Venice, FL 34285
    ph: 941-412-9000
    fax: 941-445-5731
    www.venice-florida-lawyer.com
    www.englewoodelderlaw.com

    Elder Law, Estate Planning, Probate and Real Estate
    Licensed in FL, KY and OR

    Mailing Address:
    PO BOX 2061
    Venice, FL 34284

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  • My brother has total access to my mothers bank account. i feel he is stealing money from her account. will not show statements

    asked several times to see bank statements to know avail. He wants to mpve her to where he lives and put her in a private home. she has dementia and alzheimers

    Matthew’s Answer

    If he is a joint owner, he can access the account funds. Your mother still has a cause of action against him, but unless you can trace funds to their source, it will be hard to prove that your brother stole the funds or converted them to his own use.

    You should report this type of activity to either the Department for Children and Families Adult Protective Services or to the Department of Elder Affairs. Here are links to both of those reporting websites.

    http://www.dcf.state.fl.us/programs/abuse/report.shtml

    http://elderaffairs.state.fl.us/doea/report_abuse.php

    Additionally, since it seems your mother has some form of dementia, unless there is already a power of attorney in place that is not being abused, she may be ripe for a guardianship proceeding.

    You should consult an elder law attorney in your area at once.

    Best of luck!

    Matthew Rheingans, P.A.
    1314 E. Venice Avenue, Ste. E
    Venice, FL 34285
    ph: 941-412-9000
    fax: 941-445-5731
    www.venice-florida-lawyer.com
    www.englewoodelderlaw.com

    Elder Law, Estate Planning, Probate and Real Estate
    Licensed in FL, KY and OR

    Mailing Address:
    PO BOX 2061
    Venice, FL 34284

    See question 
  • In the state of Florida, if a person passes away with no will, must the estate be distributed equally?

    My wife's father resides in Florida and is under the care of a hospice facility. He has no will. His wife is deceased. My wife has two older sisters. The oldest sister had in effect disowned her father some 20-30 years ago. She has not responded ...

    Matthew’s Answer

    Florida has an intestacy statue at Florida Statues Ch. 732. If you die without a will or trust that controls the disposition of your assets at death, it is said that you die intestate; as opposed to dying with an estate plan in place, which is called dying intestate. Here is a link to the Florida intestacy statute

    http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/0732PartIContentsIndex.html&StatuteYear=2012&Title=-%3E2012-%3EChapter%20732-%3EPart%20I

    I agree with Ms. Johnson's answer. Your father in law's probate assets (basically anything that is titled in his name solely and which doesn't pass by operation of law such as transfer on death (TOD) accounts or life insurance policies that have a beneficiary named) will pass pursuant to the scheme in the intestacy statute.

    Also be careful about his homestead. Since he no spouse or minor child, he is free to alienate or devise it anyway he wants. At death, it will still retain its homestead status in regard to creditors claims but will vest automatically at the moment of death in the legal heirs pursuant to the intestacy statute. A court order will be needed to determine who those legal heirs are.

    If your father in law is still lucid and has mental capacity to make a estate plan, then he should consult an estate planning attorney and prepare an estate plan with a will or a revocable living trust in place depending on his circumstances and nature of his assets. You should encourage your wife to make sure that an estate plan is in place as the intestacy statute just sets forth a presumed scheme of distribution of assets, without taking into consideration any subjective family issues such as you've mentioned.

    Is there anyone in Florida that can assist with putting your father in law with an attorney? You should consult an estate planning attorney immediately.

    Best of luck to you!

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  • Gifts before expiring

    can estate, trust, be contested arguing , well he gave everything away before he died. and get gifts made returned to estate

    Matthew’s Answer

    Your question is a little vague. I agree with Mr. Pippen in that anyone can bring a suit for just about anything as the civil court system is our system of redress in this country. A disgruntled heir could bring a suit alleging lack of mental capacity, undue influence or tortious interference with an expectancy in an attempt to claw back the gifts.

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  • If one receives a Quit Claim deed of a house from their sibling, will the spouse of the recipient become a legal co-owner in FL?

    Only the sister was named on the quit claim deed. The sister has a husband and adult children. What are the heir rights in this case?

    Matthew’s Answer

    If it becomes their homestead, then yes, the spouse has homestead rights the moment the deed is executed and delivered to the grantee. Also, if it is not their homestead, then this may be considered marital property that the spouse could claim rights in through a divorce proceeding. I am not a domestic/divorce attorney, but that is an issue that needs to be addressed. I believe that if you can trace the assets back to a non-marital source then a good argument could be made that this property would not be subject to equitable distribution in a divorce proceeding.

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  • Is wife responsible for medical bills after husband's death?

    Elderly husband & wife of 20 years moved to an independent living facility in Florida from NJ. Husband of 92 has since been diagnosed with cancer & going for various treatments. He is only paying his Doctor bills. No other medical bills, which are...

    Matthew’s Answer

    • Selected as best answer

    The statute of frauds in Florida will prevent someone from suing you to answer for the debt of another. Unless you have obligated yourself IN WRITING then you cannot be held liable for your husband's death. Be very careful and read everything very closely about admissions into facilities and the like, as some of these documents attempt to make the signer liable for the patient's debts.

    It is important to contact an elder law attorney immediately to ensure that there is proper estate planning and asset protection in place prior to the husband's death. You do not want assets to be probate assets and then subject to creditor's claims, such as the hospital and medical bills. Generally, everything owned singularly by the husband would be a probate asset. There are exceptions for 2 automobiles, and a family allowance of $18,0000, and you can exempt up to $20,000.00 in property. Make sure investment accounts and bank accounts are titled with the wife as the survivor/beneficiary so that those assets pass outside of probate. You will want to take the husband off the trust as a revocable living trust does nothing for asset protection and in fact even if all assets are titled in a trust, creditors can make claims against the assets held in trust.

    These are some of the issues that you need to deal with and while the list isn't exhaustive, its meant to spurn you into action and consult an elder law/estate planning attorney.

    Best of luck to you!

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  • Can I sell my mother's home for her care with a Durable Power of Attorney signed 2010? She is in the first stages of dementia.

    My mother is in the first stages of dementia and I have to work. If we were to place her in an assisted living facility, we have enough funds to continue to pay for her care for approx. 18months. If her lifespan goes beyond that, can I sell her ...

    Matthew’s Answer

    You need to review the POA and have it reviewed by an attorney. The POA will set forth the powers of you, the agent, and whether you can sell her home and car to pay for her care. Another thing you want to do is consult an elder law attorney that practices in Medicaid planning. Medicaid may pay for your mother's cost of care. There are a slew of rules to qualify for Medicaid and many pitfalls in the application process which can result in penalty periods where she is disqualified from receiving Medicaid benefits. So before you try that process on your own, consult an elder law attorney. I note that if she has dementia that medical records confirm, she is deemed "medically needy" enough to qualify for Medicaid Institutional Care Program (ICP), which is what pays for nursing home care. There are asset and income level tests that must be met in order to qualify for Medicaid as well.

    Consult an elder law attorney.
    Best of luck!

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  • Under Florida law, is a payout from a life insurance policy to a beneficiary considered an inheritance?

    I have a binding agreement with a third party to share with him any money I receive from any inheritance. The agreement--governed by Florida law--does not define "inheritance." The agreement likewise says nothing about sharing any money I might ...

    Matthew’s Answer

    I agree with Mr. Pippen's answer. First, consult an attorney to review the agreement to see if it will hold up in a court of law. Second, you will need to weigh the economics of the decision. How much did you receive from the policy proceeds? If its a small policy, say $5000, then is it worth keeping it for yourself and subjecting yourself to a lawsuit if the other party finds out? If its large, then it may be worth the fight. The cause of action would be for the other party to sue you for breach of contract (i.e., the agreement). Also important to know is whether there is an attorney's fee provision in the agreement. The general rule is that everyone pays for their own attorney unless their is a contract or statute that provides otherwise. If there is a clause that states something along the lines of "if litigation is brought to enforce the provisions of this agreement, then the prevailing party is entitled to their attorney's fees", then it should weigh into your economic analysis of the situation.

    Consult an attorney on this one before you make a decision.

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  • Florida land trust: if new trustee, do I need to change the deed?

    If a condo in Florida is titled in the name of a trustee of a revocable trust and the trustee resigns, does the deed have to be re-recorded to show the name of the new trustee? The trust document provides for the change of trustee, and all the pro...

    Matthew’s Answer

    I agree with the other two answers. When you go to sell or mortgage the property, a title insurer will require you to file a Notice of Acceptance of Trust and the relevant portions of the trust document showing that the trustee has the authority to sell, encumber, or convey the property along with an affidavit from the trustee reciting their authority.

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  • HOA florida wont talk,how can i pay off my lein before they forclose?

    i cant afford an attorney just would like a payment plan ?any suggs?

    Matthew’s Answer

    If a lien has been recorded then the amount of the lien should be stated on the face. You can send an estoppel letter to the HOA or its property manager which requests the amount of the lien to be paid off and it will give you a time frame for which this payoff amount is valid. If you can't afford to pay the lien in full, then you will need to negotiate a payment plan with the HOA attorney. This plan should be in writing to protect yourself.

    If the HOA is not talking to you, then start documenting your efforts in writing. Send them by certified mail return receipt requested so you have a record of receipt. Be professional and courteous in your letters. I would send the correspondence requesting a payoff amount to the HOA attorney, which you should be able to find out from the face of the lien or asking someone on the board. This way, you will have an argument to raise with a judge if the HOA asks for a lot of money plus attorney's fees - i.e., I have been trying to obtain a payoff amount for some time and they are just churning the file for fees.

    Best of luck to you!

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